United States

US constitutional definition

Although the United States Constitution does not explicitly define the term "natural born citizen", Section 8 of Article I confers on Congress the power: "To establish an uniform Rule of Naturalization..." This power has been construed to include defining the characteristics of a "natural born citizen", as well as the conditions of "naturalization".

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

Additionally, the 12th Amendment to the Constitution states that: "[N]o person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States."

It is thought the origin of the natural-born citizen clause can be traced to a letter of July 25, 1787 from John Jay (who had been born in New York City) to George Washington (who had been born in Virginia), presiding officer of the Constitutional Convention. John Jay wrote: "Permit me to hint, whether it would be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Commander in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen." There was no debate, and this qualification for the office of the Presidency was introduced by the drafting Committee of Eleven, and then adopted without discussion by the Constitutional Convention. (43 of the 55 delegates had been born in the Thirteen Colonies, and the others had been born on British-occupied soil: Ireland, England, Scotland, and the British West Indies. )

The 2003 Equal Opportunity to Govern Amendment, a proposed amendment to the US Constitution, would, if adopted, have removed the prohibition against naturalized citizens holding the office of the President.

US presidential candidates born outside the US

"The constitutional wording has left doubts about whether those born on foreign soil are on an equal footing with those whose birth occurred inside the country's borders, and whether they have the same rights." Though every president and vice president to date (as of 2008) has either been a citizen at the adoption of the Constitution, or else born in a U.S. state or Washington D.C., a number of presidential candidates have been born elsewhere.

George Romney, who ran for the Republican party nomination in 1968, was born in Mexico to U.S. parents. Romney’s grandfather emigrated to Mexico in 1886 with his three wives and children after Utah outlawed polygamy. Romney's parents retained their U.S. citizenship and returned to the United States in 1912. Romney was 32 years old when he arrived in Michigan.

John McCain, who ran for the Republican party nomination in 2000 and is the Republican nominee in 2008, was born at the Coco Solo U.S. military base in the Panama Canal Zone to U.S. parents. Although the Panama Canal Zone was not considered to be part of the United States, federal law states: "Any person born in the Canal Zone on or after February 26, 1904, and whether before or after the effective date of this chapter, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States, is declared to be a citizen of the United States. The law that conferred this status took effect on August 4, 1937, one year after John McCain was born — albeit with retroactive effect, resulting in McCain being declared a U.S. citizen.

US legislation and legal arguments

The requirements for citizenship and the very definition thereof have changed since the Constitution was ratified in 1788. Congress first recognized the citizenship of children born to U.S. parents overseas on March 26, 1790, under the first naturalization law: "And the children of citizens of the United States that may be born beyond sea, or outside the limits of the United States, shall be considered as natural born citizens." (See ref. for the Act of 1795)

The Fourteenth Amendment mentions two types of citizenship: citizenship by birth and citizenship by law (naturalized citizens): "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

All persons born in the United States, except those not subject to the jurisdiction of the U.S. government (such as children of foreign diplomats) are citizens under the Fourteenth Amendment. Persons born in the United States, and persons born on foreign soil to two U.S. parents, are born American citizens and are classified as citizens at birth under 8 USC 1401. There is some debate over whether persons who were born US citizens and are classified as citizens at birth under U.S. law should also be considered citizens "by birth," whether they should all be considered to be "naturalized," or whether they should be considered "statutory citizens." There is also some debate over whether there is a meaningful legal distinction between citizens "at birth", citizens "by birth" and "statutory citizens" since U.S. law makes no such distinction, nor does the Fourteenth Amendment use the term "at birth." Current U.S. statutes define certain individuals born overseas as "citizens at birth. One side of the argument interprets the Constitution as meaning that a person either is born in the United States or is a naturalized citizen. According to this view, in order to be a "natural born citizen," a person must be born in the United States, or possibly an incorporated territory; otherwise, they are a citizen "by law" and are therefore a "statutory citizen," (not necessarily, however, a naturalized citizen, which implies a pre-existing foreign citizenship). Current State Department policy reads: "Despite widespread popular belief, U.S. military installations abroad and U.S. diplomatic or consular facilities are not part of the United States within the meaning of the 14th Amendment. A child born on the premises of such a facility is not subject to the jurisdiction of the United States and does not acquire U.S. citizenship by reason of birth. However, the State Department is of the opinion that this does not affect those who are born abroad to U.S. citizens and who otherwise meet the qualifications for statutory citizenship.

US case law

US Supreme Court cases relating to citizenship, generally

Although the U.S. Supreme Court has never specifically addressed the meaning of "natural born citizen," there are several Supreme Court decisions that help define citizenship:

Dred Scott v. Sandford, 60 U.S. 393 (1857): In regard to the "natural born citizen" clause, the dissent states that it is acquired by place of birth (jus soli), not through blood or lineage (jus sanguinis): "The first section of the second article of the Constitution uses the language, 'a natural-born citizen.' It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth." (Much of the majority opinion in this case was overturned by the 14th Amendment in 1868.)

United States v. Wong Kim Ark, 169 U.S. 649 (1898): A person born within the jurisdiction of the U.S. to non-citizens who "are not employed in any diplomatic or official capacity" is automatically a citizen.

Weedin v. Chin Bow, 274 U.S. 657 (1927): A child born outside the U.S. cannot claim U.S. citizenship by birth through a U.S. citizen parent who had never lived in the U.S. prior to the child's birth. (This is still true today, although the specific statutes upon which the Supreme Court's ruling was based have changed since 1927.)

Montana v. Kennedy, 366 U.S. 308 (1961): A person born in 1906, whose mother was a native-born citizen of the United States and whose father was a foreign citizen, who was born overseas and then moved to the United States, was not a citizen of the United States by birth. (Note that the relevant laws have changed considerably since 1906, so this decision does not necessarily apply to later cases.)

Schneider v. Rusk, 377 U.S. 163 (1964): The Court voided a statute that provided that a naturalized citizen should lose his United States citizenship if, following naturalization, he resided continuously for three years in his former homeland. "We start from the premise that the rights of citizenship of the native-born and of the naturalized person are of the same dignity and are coextensive. The only difference drawn by the Constitution is that only the 'natural born' citizen is eligible to be President."

Miller v. Albright, 523 U.S. 420 (1998): A child born overseas to an American father and a foreign mother (not married) is not a U.S. citizen unless paternity is established before an established age (in this case 21). This case challenged the law on the grounds that U.S. law requires no explicit acknowledgment of parenthood in the case of a foreign-born child to an American mother and a foreign father (not married).

Nguyen v. INS, 533 U.S. 53 (2001): As in the Miller v. Albright case, the Court holds that a child born overseas to an American father and a foreign mother (not married) is not a U.S. citizen unless paternity is established before an established age (in this case 18). The child was brought to the U.S. before his sixth birthday and raised by his father; however, after a criminal conviction, deportation was ordered but the child claimed U.S. citizenship. His citizenship was denied because paternity had not been established prior to his 18th birthday. The Court upheld the law, once again affirming that Congress has the power to define citizenship outside the citizenship dictated by the 14th Amendment (citizenship by birth).

Cases in other courts relating specifically to the "natural born citizen" clause

Two United States District Courts have ruled that private citizens do not have standing to challenge the eligibility of candidates to appear on a presidential election ballot. Robinson v. Bowen, 567 F. Supp. 2d 1144 (N.D. Cal. 2008); Hollander v. McCain, 2008WL2853250 (D.N.H. 2008). In dicta in each of these cases, it was also opined that if the plaintiffs did have standing, the likelihood of success on the merits (which is part of the legal test for the issuance of a preliminary injunction) would be low. The opinion in one of the cases also cited to a statutory method by which the eligibility of the President-elect to take office may be challenged in Congress.

Honduras

In 2000 Ricardo Maduro was chosen as the National Party of Honduras candidate for the Honduran presidential election of November 2001 in spite of having been born in Panama, and there being a prohibition against anyone not born in Honduras from standing for President in the Honduran constitution. This created huge controversy within the country though eventually his right to stand as candidate was endorsed.